DHS and DOL should focus on improving protections for H-2B and U.S. workers rather than expanding a flawed guestworker program

ProPublica recently reported that the Department of Labor (DOL) and the Department of Homeland Security (DHS) are being pressed to “find the data” to justify an interim final rule (IFR) to increase the number of visas in the H-2B guestworker program before the end of the fiscal year, as means of securing votes in the Senate for repealing the Affordable Care Act. Such an action would compromise the integrity of what should be an exhaustive and transparent rulemaking process.

There is no good reason for any increase in the H-2B annual numerical limit (also known as the “cap”), but if the administration is set on expanding a flawed guestworker program that leaves migrant workers exploitable while undercutting U.S. workers, it makes sense for DHS and DOL to promulgate an IFR. At present there is no established process or procedure set up for lifting the cap in the way it might play out in the coming weeks as a result of a legislative rider to a government spending bill that gave DHS discretion to raise the cap. Simply publishing a statement or policy directive might be questionably legal or be challenged in the courts, and an IFR will at least offer the public a more transparent process and methodology. DHS should also consider offering the public an opportunity to offer input on any published regulation or IFR on H-2B, even if it is provided after the rule goes into effect.

But first, it is important to remember that the long term labor market trends and indicators do not suggest the United States is experiencing national-level labor shortages in the top H-2B occupations. There is however, ample evidence that the H-2B program needs major reforms to protect migrant and American workers. At present, employers have an incentive to hire indentured and underpaid H-2B workers from abroad who have little power in the workplace, and who have no hope of a path to permanent residence and citizenship.

And second, any move to expand H-2Bs should have been made through the regular legislative process and after a full debate in Congress, so that members are accountable for their votes. The expansion of the H-2B program that DHS and DOL are now considering was not debated or considered in the appropriate committees of jurisdiction over immigration or the full House and Senate, but was instead tacked on to a must-past spending bill.

The next time Congress takes action to reform the H-2B guestworker program, rather than expanding a flawed program, it should begin with removing the appropriations riders that were previously enacted and are in effect, which watered down and prevent enforcement of basic and key worker protections in the H-2B program, and which allow employers to use private wage surveys to underpay their H-2B migrant workers.

If the Trump administration does in fact expand the H-2B guestworker program before the end of the fiscal year, it would make it clear that they do not care about protecting migrant workers or ensuring they’re fairly paid, and that it has forgotten about the unemployed American workers with similar skills levels who are currently seeking work.

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